When Davidson County General Sessions Court Judge Daniel B. Eisenstein filed suit against WTVF-Channel 5 on Wednesday, claiming the station maliciously libeled and portrayed him in a false light, he set the stage for a local test of an uncommon legal issue: a public official taking on a media outlet.

The legal burden he faces is high but not insurmountable.

Eisenstein is suing WTVF-Channel 5 for unspecified compensatory and punitive damages, as well as the retraction of what he says were “defamatory and libelous statements.” He’s asked that a jury hear the case. The suit lists the station’s parent company, Landmark Media Enterprises, station manager
Lyn Plantinga, news director Sandy Boonstra and reporter Phil Williams as defendants.

Reached for comment last week, Boonstra said, “We take something like this very seriously, but we stand by our stories.” Plantinga declined to comment. Williams did not return messages seeking comment.

WTVF-Channel 5 attorney Ron Harris, of Neal & Harwell PLC, told The City Paper, “NewsChannel 5 disputes the allegations made against it and its reporter. We don’t believe they’re valid claims, and we’ll seek to dismiss the lawsuit at the appropriate time.”

Eisenstein claims WTVF-Channel 5 ran a “false and libelous” story in July 2010 that asked in its headline, “Is Another Nashville Judge Under Ethics Investigation?” In his suit, the judge states the station broadcast the story maliciously, and that the defendants knew the assertion was false or “had obvious reasons to doubt the accuracy” of an assertion that Eisenstein was under investigation.

In February, the station ran another story that questioned why Dr. James Casey — an unlicensed psychologist, as the story pointed out — was allowed to work with and, according to Williams’ reporting, treat mentally ill offenders as part of the Mental Health Court for Davidson County, which Eisenstein oversees. The judge declined on-camera interviews for the stories. But in the lawsuit, Eisenstein states he made it clear to the news station through a series of counsel-to-counsel letters that he didn’t hire Casey to perform the tasks of a licensed psychologist but hired him for work that didn’t require a license.

Eisenstein also claims the investigations that led to those stories resulted from a June 2010 hearing he presided over regarding two parking tickets Williams received one day in May 2010 for parking in a media parking/loading zone without properly identifying his vehicle.

After police learned that the vehicle belonged to Williams and that he had been at police headquarters as it related to his job as a reporter, a police captain wrote a letter to the Traffic Violation Bureau explaining what happened and requesting that the second ticket be dismissed and Williams be heard in court on the first.

On June 23, 2010, the judge held a hearing on, according to the suit, “the lawfulness and propriety of the request,” during which he bristled over the idea of tossing aside a ticket outside of court — something he stated in the suit, “appeared to fly in the face” of a memo signed by Mayor Karl Dean in May 2009 regarding the unauthorized dismissal of traffic citations outside of court.

During the hearing, Eisenstein seemed beside himself at the prospect of throwing out a ticket issued to Williams — who in the past had written stories critical of the General Sessions Court as well as those highlighting ticket fixing with Metro government.

Eisenstein left the fate of the two tickets to be determined during the traffic docket on which they were regularly set to appear in July, and he made no ruling on the actions by police. Williams paid both the parking tickets before the docket hearing in July.

Eisenstein suggests in the suit that Williams may have tried to press a point when he “or someone acting upon his direction” provided a recording of that June 23 hearing to the disciplinary counsel for the Court of Judiciary of Tennessee “in an effort to have the Court of Judiciary … conduct an investigation of the Plaintiff, Eisenstein.”

The judge says following that series of events, Williams started working on an investigative story about Eisenstein out of retaliation, leading to the subsequent stories he says are false.

Dave Heller, senior staff attorney for the Media Law Resource Center in New York, said a high percentage of cases in which a public official sues a media outlet are dismissed in favor of the media defendant prior to trial. The public official — no less than a judge in this case — must overcome a very high standard of fault on the part of the media outlet.

Public officials must prove by clear and convincing evidence, not just a good probability, that a media outlet published a story with actual malice — that it knowingly and negligently published false statements about the official. The U.S. Supreme Court set the standard in 1964 with New York Times Co. v. Sullivan.

Even if a jury were to find evidence of bias by WTVF-Channel 5, that wouldn’t be enough, Heller said, adding that a reckless indifference or disregard for the truth must be evident.

“That’s why many media defendants are able to get summary judgment in defamation and false light invasion of privacy cases,” said David L. Hudson Jr., scholar at the First Amendment Center at Vanderbilt University.

The U.S. Supreme Court likes public debate to be messy — or at least have the potential to be. In an article on libel and defamation, Hudson quotes the U.S. Supreme Court’s own language from New York Times Co. v. Sullivan:

“We consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”

According to Heller, the MLRC is aware of 14 trials since 1980 in which judges sued the press for libel. The judges won eight of those trials, with damages awarded ranging from $35,000 to $8.3 million. Heller said while the standard is high for a public official, multimillion-dollar judgments prove it isn’t impossible.

Eisenstein’s attorney, Robert L. DeLaney, of Tune, Entrekin & White PC, said, “It’s very tough to demonstrate actual malice and reckless disregard, but I think the factual pattern in this case is one which can result in a jury deciding in the matter.”

If Eisenstein is successful, the discretion juries have in libel damage awards — meant to compensate for harm done to an individual’s reputation and any emotional distress — is wide-ranging. Harm to reputation and emotional distress aren’t easily quantified.